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Reproduced with permission of 11Vindobona Journal of International Commercial Law & Arbitration (2/2007) 259-290

Current Problems Regarding the Interpretation of Statements and Party Conduct under the CISG - The Reasonable Third Person, Language Problems and Standard Terms and Conditions [d1]

Felix Lautenschlager [a1]

  1. Introduction
  2. The Structure of Article 8 CISG
  3. Current Problems Regarding Article 8 CISG
    3.1     The reasonable third person of Art. 8(2) CISG
    3.2     Considering subsequent conduct (Art. 8(3) CISG)
               3.2.1     Party conduct as counter-evidence
               3.2.2     Invoking one's own conduct
               3.2.3     Common subsequent conduct
               3.2.4     Conclusion
    3.3     Language problems
               3.3.1     Language and "due reception"
               3.3.2     Critique
               3.3.3     Language differences as a matter of interpretation
                            3.3.3.1     Contractual language agreed upon
                            3.3.3.2     Reaction to a statement which has not been understood
                            3.3.3.3     World and "common" languages
                            3.3.3.4     Translations
    3.4     General terms and conditions in the light of interpretation
               3.4.1     Incorporation
                            3.4.1.1     Reference to the standard terms and conditions
                            3.4.1.2     Taking notice of standard terms and conditions
                                             3.4.1.2.1     Current opinion
                                             3.4.1.2.2     Offering a solution
                                             3.4.1.2.3     An actual issue: publication on the Internet
                                             3.4.1.2.4     Incorporation check by means of interpretation
               3.4.2     Battle of the forms
                            3.4.2.1     Last shot theory
                            3.4.2.2     Critique of the last shot rule
                            3.4.2.3     Knock-out rule
                            3.4.2.4     The German Supreme Court's opinion regarding the knock-out rule
                            3.4.2.5     Critique of the knock-out rule
                            3.4.2.6     Author's opinion
  4. Conclusion

      The individual has to be willing to put the rule of his will into perspective with regard to the limits of communication. The main purpose of rules of interpretation is to overcome the gap between the will and communication.[1]

1. INTRODUCTION

The contract law of the CISG depends on reliable rules of interpretation of statements as it is based on party autonomy and, thus, to a large extent on the legal statements of those engaged in international commerce. Article 8 CISG,[2] the core provision regarding interpretation of statements under the CISG, offers a balanced approach. In this article, the author discusses some of the as yet unsettled issues regarding this provision.

This paper discusses first the content and the functionality of the rules of interpretation of the CISG in Section 2. A description and discussion of current problems in relation to Art. 8 will follow in Section 3, and conclusions are drawn in Section 4. [page 259]

2. THE STRUCTURE OF ARTICLE 8 CISG

The core provision for the interpretation of statements and conduct of parties under the CISG is Art. 8. According to Art. 8(1), the real intention of a party must first be ascertained. The legal effect of the real intention, however, is constrained by the need to produce legal certainty for the market.[3] Therefore the real intention is only decisive if the other party 'knew or could not have been unaware what that intent [is]'.

Systematically, an interpretation based upon the real intention is the primary rule to be applied,[4] even if the real intention may be unreasonable.[5] This is most significant under special circumstances, such as a mutual mistake of the parties (falsa demonstration non nocet),[6] a collusive deal [7] or a recognised mistake in a party's representation to the other.[8] By way of contrast, Art. 8(1) is definitely not applicable to a secret mental reservation.[9] According to Art. 8(2), an objective interpretation of the statements or conduct of the parties is the exception, which is to a large extent similar to the doctrine of the reasonable third person ('Empfängerhorizont') in German law.[10] The relevant question posed by Art. 8(2) [page 260] is what a 'reasonable person of the same kind as the other party [...] in the same circumstances' would have understood. In practice, however, the exception defeats the rule -- Art. 8(2) is the dominant means by which parties statements and conduct are interpreted.[11]

Article 8(3) provides one of the basic principles of interpretation of statements under Arts. 8(1) or 8(2) by listing some of the circumstances which must be taken into account when interpreting party statements or conduct: There is no formal restriction [12] as to which circumstances can be taken into account to determine either the real intention or the understanding of a reasonable third party. Thereby, national rules such as the parol evidence rule, which restrict the factual bases for determining the intention of a party in favour of an objective determination, are not considered to be applicable.[13]

3. CURRENT PROBLEMS REGARDING ARTICLE 8 CISG

Much more can be written about the interpretation of statements than the limited length of this paper allows. However, four relevant and noteworthy interpretative problems are discussed below. [page 261]

The first problem concerns the objective interpretation according to Art. 8(2). There is no uniformity in literature regarding the definition of the reasonable third party. This matter is discussed in Section 3.1 below. Further, the consideration of subsequent conduct (Art. 8(3)) when interpreting statements has been declared 'illogical'.[14] Whilst this is correct, no precise analysis of this issue can be found in literature; thus one is proposed in Section 3.2.

A third and more general problem with regard to Art. 8 as a whole is the usage of different languages in international trade. In German literature, a solution to this problem is often sought by applying the concept of Zugang, which can be described as 'due reception'. But this concept does not offer a guideline as to which languages have to be understood. This paper analyses this approach and suggests an alternative in Section 3.1. Finally, an ongoing area of contention is the incorporation of standard terms and conditions under the CISG and consequently, the answer to the 'battle of forms'. The available approaches are discussed in Section 3.4 of this paper.

3.1 THE REASONABLE THIRD PERSON OF ART. 8(2) CISG

When interpreting party statements and conduct, Art. 8(2) which provides for objective interpretation, is the most relevant provision.[15] This provides that the understanding which a reasonable third person in the shoes of the addressee [16] would have had is decisive, provided that the true intention was not apparent.[17] The core of the provision is the determination of the 'reasonable third person'. It is of paramount importance which aspects are considered to be among 'the same kind' and 'in the same circumstances'. Depending on the scope of these terms, Art. 8(2) can lead to a very objective interpretation close to the plain meaning rule, or to an almost subjective interpretation, which only excludes secret mental reservations.

The definition of the reasonable person in legal literature varies. Some authors suggest that a 'reasonable market participant engaging in transactions of the same kind'[18] is the appropriate definition, although this appears to provide no further assistance than the wording of Art. 8(2) itself. A narrower definition is provided by Junge:

The relevant person is a professional who knows the practice of his trade sector, the different modes of sale of the relevant goods and the corresponding jargon, but also the technical procedure of transaction and the technical properties of the goods and their utilization.[19] [page 262]

The point of departure is in most cases the abstract, objective understanding of an addressee,[20] whereby subjective elements shall be considered only occasionally. [21] In this respect, the surrounding circumstances [22] and facts from the sphere of the declarer, which are known to the addressee,[23] should be relevant.

More subjective is the view that Art. 8(2) provides for an objective interpretation in which elements of the person of the addressee are included to such an extent that it amounts to an almost individual interpretation.[24] The objective element is, according to this view, that only unreasonable aspects, such as lack of professionalism, should remain unconsidered:[25] a court should determine what this person should have understood in the same circumstances, considering knowledge from prior dealings between the parties, negotiations, and knowledge from the relevant world markets.[26]

But both views are not flawless. On the one hand, an objective approach seems to be too strict for Art. 8(2): the wording 'reasonable person of the same kind as the other party [...] in the same circumstances' already provides for the inclusion of subjective elements. Furthermore, the inclusion of subjective elements when determining the 'reasonable person' was intended [27] by the Conference.[28] On the other hand, it seems difficult to give consideration to elements belonging to the sphere of the declarer which are known to the addressee.[29] On the assumption that the addressee knows certain circumstances from the sphere of the declarer, and the declarer is not aware of the addressee's knowledge, and hence formulates his statements as for a person ignorant of that knowledge, misunderstandings can arise.

An example: A Swabian [30] and a Swiss enter in to a contract governed by the CISG. The Swabian promises delivery 'in eight days'. In Swabian, 'in eight days' [page 263] means one week, i.e. seven days. The Swiss is aware of this specialty of the Swabian dialect and assumes delivery in one week. But the Swabian made his statement for a Swiss and thus said and meant eight days. If the knowledge of facts from the sphere of the declarer had to be considered, the statement had to be interpreted to mean eight days, which would not serve legal certainty and thus ought not to be preferred.

On the other hand, aspects from the sphere of the addressee which are known to the declarer cannot remain completely unconsidered. A similar problem arises in this case. If the addressee understands -- intentionally -- the statement objectively, because he does not know that the declarer has knowledge of the special circumstances on the addressee's side, the question arises how the statement has to be interpreted. By way of example, the Swiss declares 'delivery in eight days' to the Swabian. The Swiss, due to his kindness, employs the terminology of his business partner and means 'in one week'. But the Swabian does not have a clue about the Swiss' special knowledge and understands, according to Standard German,[31] 'eight days' as meaning eight days.

As has been shown, drawing the line between aspects which should and should not be included into the definition of 'person of the same kind [...] in the same circumstances' is the actual problem. The line to be drawn is the line of legal certainty in international trade.[32]

It follows that aspects which exist, but are not known to both parties, must not be considered: to consider such aspects would undermine legal certainty. The declarer can design his statement for special circumstances surrounding the addressee only if the declarer can reasonably expect that the addressee takes the 'special design' into account. The same is true in converse circumstances: the addressee can consider special circumstances surrounding the person of the declarer only if the declarer should reasonably have known that the addressee would do so. Otherwise, parties start to read uncertain or ambiguous meanings into the others' statements.

Having regard to these preconditions, there is (contrary to one opinion) [33] no reason to leave 'unreasonable' aspects (like lack of professionalism) unconsidered when interpreting the statements and conduct of the parties under Art. 8(2). If a business partner acts unprofessionally because he, for example, recently commenced business in a certain trade sector and is not yet familiar with all common circumstances and procedures, there is no reason to leave this fact unconsidered if everybody involved is aware of it. This result is supported by the wording of [page 264] Art. 8(2), which describes a person 'of the same kind [...] in the same circumstances'. It does not contradict the notion of a 'reasonable person', as lack of professionalism in such circumstances is not unreasonable. The term has to be understood on the basis that the process of interpretation undertaken by the addressee has to be conducted with due diligence: the addressee must not ignore a certain meaning intentionally or negligently.

The basic rules presented here resolve the problem raised by Witz [34] if two parties have different spheres of understanding, Art. 8(2) should not be applied to identical counter statements. If a US citizen declares '$50', and a Canadian declares 'Alright, $50', then -- according to Witz -- an irresolvable dissent would arise. The USA citizen would have understood US dollars and the Canadian would have understood Canadian dollars, both according to Art. 8(2). But, contrary to the view expressed by Witz, the problem is capable of resolution under Art. 8(2): When determining the reasonable understanding of the Canadian, it has to be considered that the USA citizen apparently has meant US dollars. Therefore, the 'reasonable person' in the shoes of the Canadian would have understood the US citizen to have been referring to US dollars.

Conversely, when considering the understanding of the US citizen, it has to be considered that the Canadian was responding to his statement. Therefore, a reasonable person in the shoes of the US citizen would have understood US dollars, as the US citizen introduced the term 'dollars' in the first place. Therefore at the end of the day, under Art. 8(2), it can be concluded that the parties agreed on US Dollars.

3.2 CONSIDERING SUBSEQUENT CONDUCT (ARTICLE 8(3) CISG)

Article 8(3) identifies circumstances which shall be considered when determining the meaning of statements and other conduct of parties. Among those circumstances is 'any subsequent conduct of the parties'.

The consideration of subsequent conduct under Art. 8(3) has been subject to criticism: consideration of the conduct of the parties after the conclusion of the contract appears to be illogical.[35] As the content of the statement has to be fixed at the point of time where the statement becomes effective, the subsequent conduct could only be considered to 'illuminate' the circumstances surrounding the conclusion of the contract.[36] Furthermore, there is no clear line to contract amendment.[37] [page 265]

Unfortunately, the analysis of the meaning of the subsequent conduct of the parties lacks sufficient accuracy. The precise scope of application of this tool of interpretation can be shown with reference to specific types of cases.

3.2.1 Party conduct as counter-evidence

One option is that the subsequent conduct of a party after contract conclusion is relied upon as counter-evidence by the other party, since '[i]n a dispute over the meaning of a contract [...], each party claims that the language should be given the meaning that he attaches to it at the time of the dispute.'[38]

It can, therefore, be advisable to rely on a party's subsequent conduct to determine the intention of that party at the time of contract conclusion. In this regard, the referral by that party to the text of the contract,[39] the resale of the goods bought under the contract,[40] and the acceptance of invoices [41] have all been considered by courts to evidence a valid contract conclusion, notwithstanding the declaring parties' contentions that no valid contract was concluded. Furthermore, the continuation of contract performance has been regarded as evidence against valid contract avoidance,[42] and the claim for a total invoice was regarded as evidence to rebut the agreement on a contractual right to return the goods.[43] A party obtaining transport insurance cannot claim that the other party assumed the transport risk.[44]

All these cases have in common that the understanding, which the declaring party claimed to have had, was in conflict with its subsequent conduct. For this class of cases, I agree with the view that the specification of subsequent conduct in Art. 8(3) fixes the maxim of the ban of venire contra factum proprium.[45]

3.2.2 Invoking one's own conduct

On the other hand, it is problematic if a party tries to influence the contract's interpretation unilaterally.[46] This problem was already apparent when the CISG [page 266] was being drafted.[47] A party which does not want to perform the contract could argue that no contract was concluded at all. But, '[w]hen a dispute arises over the 'meaning' of a contract, the contending parties are scarcely reliable witnesses as to what was in their minds when they made the contract.'[48]

Therefore, one must be careful when considering subsequent party conduct. A party could sell goods, the sale of which it has contracted to a second party, to a third party and based on this third party transaction claim that it did not consider a validly concluded contract had been entered into with the second party. This cannot be the intention of the CISG. In this instance, the maxim pacta sunt servanda has to constrain the relevance of subsequent party conduct. A party should not be allowed to buttress the credibility of its position, which is outside the contract, by its own subsequent acts. If this was permissible, it would offer to the parties the opportunity to manipulate, by conduct subsequent to the conclusion of the contract, the interpretation of their previous statements and conduct.[49]

Therefore, the use of subsequent conduct to determine the intended meaning of ambiguous clauses,[50] or to show the original understanding of a party,[51] must be handled with care. These methods of interpretation can only be applied if the subsequent conduct in question is employed as counter-evidence to the claimed understanding, i.e. if the conduct and the claimed understanding are different.

If the subsequent conduct and the claimed understanding of a party are identical, the conduct should not be considered by reason of the risk that the subsequent conduct was artificially and deliberately undertaken with the intent of manipulating the outcome of interpretation.

3.2.3 Common subsequent conduct

If both parties demonstrate conduct which differs from the text of the contract, a certain interpretation [52] or a contract amendment [53] can be derived from the common subsequent conduct of the parties without further difficulty.

3.2.4 Conclusion

Since the plain wording of Art. 8(3) suggests that it is applicable in all cases, the scope of application has to be reduced in order to avoid illogical results. Only the [page 269] other party can rely on the subsequent conduct of a party, never the party which undertook the conduct in question.

Put differently, a party ought to be precluded from relying on a different interpretation of its former statement when this party has shown a contrary conduct afterwards.[54]

3.3 LANGUAGE PROBLEMS

'Words, in particular sentences, are the carrier of meaning, not only sound, but only for those who master the language well enough to be able to assign meaning to them.'[55]

It is the nature of international trade that the parties often come from a different linguistic background. As the CISG does not deal with the problem of different languages expressly, it has to be resolved with the available provisions.

One strong opinion, discussed in Section 3.3.1 below, suggests that the language problem can be resolved by determining whether or not a statement 'reaches' the addressee.[56] I will demonstrate the weaknesses of this approach in Section 3.3.2, and suggest an alternative solution in Section 3.3.3.

3.3.1 Language and "due reception"

According to widespread opinion, especially in German literature, the question of whether a statement in a foreign language is binding is a question of 'due reception' or, in other words, whether and when a statement 'reaches' the offeree. A statement which is sent in a foreign language, which the addressee is not expected to understand, shall not have been duly received by the addressee.[57] This [page 268] view is often reasoned by analogy to German law [58] according to which a statement is only received duly by the addressee if it was possible for him to take notice of the statement's content.[59]

3.3.2 Critique

It is not necessary to answer the question of different languages by 'due reception'. There are several reasons which justify opposing the transfer of the principle of the German Civil Code (Bürgerliches Gesetzbuch -- 'BGB') to Art. 24, which addresses the question when a statement reaches the addressee according to the CISG.[60] First, the wording is essentially different: whilst BGB 130 stipulates that a statement becomes effective at the point in time when it reaches the addressee (with the term 'reaches' left undefined), Art. 24 does define when a statement 'reaches' the addressee. Under Art. 24, a statement:

'reaches' the addressee when it is made orally to him or delivered by any other means to him personally, to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence.

This comprehensive wording does not leave any scope for the imposition of further requirements such as the possibility to take notice. Article 24 determines when a statement becomes effective, i.e. upon physical delivery. But whether a legal statement exists has to be determined with reference to Art. 8. Thus, Art. 24 only imposes an abstract possibility to take notice.[61]

The non-German commentaries do not see a problem of due reception,[62] a view which appears to be correct: the requirement imposed by Art. 7(1) that the CISG be interpreted uniformly and autonomously undermines any argument that the German rules should be transferred into the CISG.[63] Furthermore, the classification of language problems as a question of due reception is not convincing in certain cases. If the addressee has a statement translated which had [page 269] not 'reached' him prior to the translation due to the use of an exotic language, does the statement then reach him when he receives the translation, even though it physically reached him before? And what happens if a statement which has not been understood (and thus has not reached the addressee) is signed and returned? It is common sense that such a statement is binding,[64] but how can an offer, which has not even reached the offeree, be concluded to have been accepted?[65]

Problems already arise upon the attempt to draw a line between questions of language and other interpretation issues. The appropriate point to identify the qualitative difference which separates the interpretation issue from the issue of 'due reception' remains open. It is rather a smooth transition. From smaller misunderstandings due to the choice of words, via technical and legal [66] terms and the use of language in certain trade sectors, via dialects or agreed codes to a 'real' foreign language -- no clear break can be identified which could justify a different treatment.

Furthermore, no standard can be derived from Art. 24 to determine which language the addressee should understand. Some argue that such a standard can be determined with reference to free considerations,[67] and others suggest an analogy to Art. 8.[68]

At the end of the day, the classification of the issue of a foreign language as a question of 'due reception' remains problematic. The problem can be resolved adequately, as it will be shown below, if it is treated as a problem of interpretation.

3.3.3 Language differences as a matter of interpretation

Both the question of the content of a legal statement, and the question of if there is a legal statement at all, are matters of perception in the first instance.

The core provision for the interpretation of statements and conduct is Art. 8. There is no apparent reason why the issue of which language is used for a certain statement cannot or should not be resolved by employing Art. 8.[69] Even the legal relevance of a party's conduct, where guidelines for meanings such as language do not exist, is explicitly governed by Art. 8. Further, Art. 8 is utilised to decide [page 270] whether a statement has legal relevance at all.[70] Thus, Art. 8 is entirely appropriate to resolve the language issue as well.

A significant advantage of Art. 8 can be mentioned in advance and should be borne in mind: Art. 8(1) gives weight to the true intention of a party if the intention has been recognised by the other party. If the addressee of a statement is capable of understanding a language, which he was not required to understand, the intention of the declarer prevails. The application of Art. 8 on the issue of language differences leads to adequate and defensible results (which do not differ significantly from the free arguments by other authors). These can be demonstrated by giving a few examples.

3.3.3.1 Contractual language agreed upon

If the parties agreed upon a language to be used prior to contract conclusion, it is a question in each individual case how the agreement is to be interpreted.

On the one hand it can be understood as a declaration of one party that this party understands the language sufficiently. So, for example, if a German party and an English party agree to negotiate in English, it will first and foremost be a declaration by the German party that it understands English sufficiently to negotiate in that language.

If, following the agreement to negotiate in English, the English party makes a statement in English to the German party, Art. 8 will, in effect, deem the German party to have understood the content of the statement even if the German party did not understand. According to Art. 8, a statement has to be interpreted according to the understanding that a reasonable person of the same kind would have had, and in making that interpretation factors specific to the kind of person, including language abilities,[71] have to be considered.[72] A reasonable person of the same kind would have only declared to the other that it understood English sufficiently if it actually did. Thus, a party asserting its language abilities will be deemed to understand the language and thus the other party's statements made in that language.

A further interpretation, which depends on the individual case, is that the agreement of a language is a deviation from Art. 8 (cf. Art. 6): the parties could agree a provision that only statements made in the agreed contractual language shall have legal effect, even if other languages are actually understood.[73] Such an [page 271] agreement, however, raises no issue of interpretation but rather is a party-imposed validity rule.

This result regarding the agreed contractual language reflects generally the result presented in legal literature, where it is reasoned by reference to by free considerations [74] instead of Art. 8.

3.3.3.2 Reaction to a statement which has not been understood

What happens if an offer is made in a language which the offeree neither understands nor should have understood, and the offeree signs this offer and returns it to the offeror? This problem can also be resolved by applying the CISG's rules of interpretation in Art. 8. If the offeree did not understand and was not supposed to understand the offer, there is no legal statement with a certain content according to Art. 8(2). But there is an offer with an indefinite content. That it is an offer is clear to the offeree, otherwise he would not sign and return it.

The indefiniteness of the content changes to definiteness at the moment that the offeree returns the offer: According to Art. 8(2), the reply (i.e. the acceptance) can only be understood by the offeror receiving it as meaning that the offeree intends to accept the offer, since he either understood it or since he agreed to the terms in the offer notwithstanding that they were not understood.

This result corresponds with the conclusions in legal literature regarding documents which were signed without understanding.[75]

3.3.3.3 World and "common" languages

Where unilateral statements are made in a foreign language (for example, in connection with avoidance of the contract), identifying the circumstances in which such statements have legal effect against the addressee becomes particularly relevant. This question of a 'duty to understand' can be resolved in an elegant way with the interpretation rules of the CISG.

There are several different approaches in the literature which unfortunately tend to generalise and do not appear to be based on Art. 8. Some authors contend that [page 272] English ought to be understood generally [76] or at least in most cases.[77] Even legal English [78] and German [79] have been asserted to be common languages which ought to be regarded as generally understood. Contrary to these views, other authorities suggest that the addressee is generally not expected to prepare a translation.[80]

It is submitted that the better view is that one should refrain from employing a generalised approach.[81] The reasonable third person described in Art. 8(2) is suited to resolve the problem of unilateral statements.

Taking into consideration the market and nationalities involved, Art. 8(2) permits a determination to be made in every individual situation as to whether a reasonable person of the same kind would have understood the language, and thus the statement. English might be a commonly used language in German-American computer trade, but it might not in fish trade between China and Russia. The reasonable person of the same kind of Art. 8 allows factors to be considered related to the kind of person involved in the communications, such as whether the contract was concluded with the general manager or with an employee in an retail store who might be expected to be less proficient in a foreign language.[82]

Further, the national language of the country of the addressee is usually regarded as a language which the addressee must be able to understand.[83] But an exception has to be made if the addressee possesses no language skills in the language of the country of his residence and if this is known to the declarer.[84] Article 8(2) permits such a conclusion to be made. [page 273]

3.3.3.4 Translations

Generally speaking, the same legal methods can be applied to resolve the issue of whether or not there is a duty to translate messages. Whether a reasonable third person in the shoes of the addressee has such a duty can be determined with reference to the reasonable third person standard in Art. 8(2).[85] The question posed under that Article is whether the reasonable third person would have understood the message after having translated it.

Hence, a duty to translate might exist for world languages,[86] whilst the business partner of a German national may reasonably have a lower expectation that an average European would translate Arabic or Chinese standard terms.[87]

It is also possible that the duty imposed upon the addressee may differ according to the volume of the transaction, or the degree of usage of certain languages or multilingualism in the respective branch of trade. Translations from Arabic, for instance, might, with regard to the reasonable third person, be more common in the Kuwaiti-European oil business than in trade between Europe and Canada.

By employing such an approach, too generalised results can be avoided, such as the doctrine that the incorporation of standard terms in a foreign language should generally fail,[88] or indeed the opposite view, that they are generally incorporated without recourse to language abilities.[89] Further, the duty to translate messages does not have to be derived from any asserted obligation of good faith.[90]

3.4 GENERAL TERMS AND CONDITIONS IN THE LIGHT OF INTERPRETATION

A topic which is heavily discussed in literature is how to deal with general terms and conditions or standard form contracts (hereinafter referred to as 'standard terms') under the governance of the CISG. This paper shall discuss how issues and [page 274] disputes concerning standard terms can be resolved with the help of interpretation of statements and conduct, focusing in particular on the incorporation into the contract of standard terms, discussed in Section 3.4.1, and the 'battle of the forms' dealt with in Section 3.4.2.

3.4.1 Incorporation

Whilst the question of validity of standard terms or of their particular provisions is excluded from the scope of the CISG due to Art. 4(a),[91] commentators and the judiciary appear to agree that the question of whether they are duly incorporated into the contract is to be judged according to the provisions of the CISG.[92] The CISG overrides national rules of incorporation, such as 305(2) and 310(1) sentence 1 of the German Civil Code.[93]

The converse view, which does not regard the matter of incorporation of the standard terms as a matter governed by the CISG, and which considers it properly to be one which is resolved according to national domestic law,[94] or according to the general principles of the CISG,[95] lacks persuasive reasoning. The view that Arts. 8 and 14 et seq. govern exhaustively what can become a part of the contract and how it can become part of the contract should be followed. The incorporation of standard terms cannot be regarded as being of a different nature than 'normal' contract clauses, as the CISG does not define 'standard terms'.[96]

However, legal scholars disagree as to which provision of the CISG governs the incorporation of standard terms. Whilst the prevailing opinion [97] is that Art. 8 applies, Piltz [98] suggests developing the incorporation rules based on Art. 14, as [page 275] incorporation based on Art. 8 would involve the danger that national rules of incorporation could develop a too strong influence. Even though this danger might exist, it is not possible to resolve the problem only by applying Art. 14: Article 14 merely states the legal result of the completely assembled factors of an offer. The precedent and here decisive step, in which it is determined what shall be a factor of an offer according to the will of the offeror, is governed by Art. 8.[99]

Hence, it is necessary that the offeree be shown under Arts. 8(1) or (2) to have understood that the opposing party intended to incorporate the standard terms into the contract and vice versa.

Problems arise if there is no (or no clear reference) to the incorporation of the standard terms or if there is such a reference, but the content of the standard terms are not accessible for the other contracting party's perusal.

3.4.1.1 Reference to the standard terms and conditions

According to Art. 8(1), the intention of a party to incorporate standard terms only prevails if the other party was aware of this intention or could not have been unaware of it. If Art. 8(1) is not satisfied then, according to Art. 8(2), the understanding of a reasonable third person in the shoes of the addressee will determine whether the offer has to be understood as incorporating standard terms. Consequently, there has to be a clear reference to the incorporation of the standard terms.[100] It has been held to be sufficient if a party is referred by the front page to the back page of the contract form on which the standard terms were printed.[101]

On the other hand, it has been held insufficient if the standard terms are printed on the back page of the contract form but there is no reference to them on the front page.[102] Where the standard terms are embodied as a separate document and sent to the offeree together with the actual offer, then the implied intention of the [page 276] offeror to incorporate the standard terms into the contract is recognisable even without an express reference.[103]

Similar to German law, a reference to standard terms on an invoice has been held not to be sufficient,[104] whilst the reference on a pro forma invoice, which is issued prior to contract conclusion, has been consider sufficient by the court.[105]

Further problems arise if the reference to the standard terms or the standard terms them selves are in a language which the addressee is not able to understand. In this regard and to avoid repetition, I refer to the discussion of language problems supra.[106]

3.4.1.2 Taking notice of standard terms and conditions

However, the question remains whether the party introducing the standard terms is obliged to send them to the other party or to provide them by other means, and if so, by which means.

3.4.1.2.1 Current opinion

The opinions found in literature and the judiciary range from an obligation of the introducing party to send the standard terms to the offeree [107] to the view that the [page 277] mere possibility to take notice is sufficient,[108] i.e. if the offeree could have taken notice of the standard terms.[109]

The German Supreme Court [110] bases its doctrine, which has been cited as a 'duty to send',[111] on the fact that the intention to include the standard terms into the contract has to be recognisable according to Art. 8. Otherwise the other party would not be able to anticipate what it is contracting for. Therefore, the party introducing the standard terms has to send them to the other party or provide access to the terms and conditions by other means.[112] It could be derived from the principle of good faith and the duty of the contracting parties to cooperate that it could not be expected that the other party should be required to inquire as to the content of the first party's standard terms since both parties are interested in contract conclusion without delay.

Contrary to the German Supreme Court's view, the Tribunal Commercial de Nivelles [113] of Belgium held that neither positive knowledge of the standard terms nor the sending of the standard terms was necessary, as long as the other party had the possibility to obtain the content of the standard terms in question.[114] This judgment was not considered in the judgment of the German Supreme Court.

3.4.1.2.2 Offering a solution

The underlying question is whether a party can agree to something that the party does not know. The CISG itself does not offer any instrument other than Art. 8 to answer this question within the framework of offer and acceptance. Therefore, any categorical approach should be avoided and the issue should be resolved with the open and flexible spirit that is typical of Art. 8.[115]

Unfortunately, legal literature and judicature answer the question of the incorporation of standard terms only with general considerations and no systematic [page 278] application of Art. 8 can be found, not even in the landmark judgment of the German Supreme Court.[116]

The systematic application of Art. 8 in this respect can be illustrated by example: The offeror sends his offer to conclude a contract to the offeree. The offer includes the reference: 'Our standard terms and conditions are part of this contract'. The offeree signs the offer and returns it. Subsequently, the contract is being performed.

First, the offer of the offeror has to be interpreted. According to Art. 8(1), the true intention of the offeror is relevant if the offeree could not have been unaware of the intent. This is easy to establish for the fact that the offeror intended to include the standard terms into the contract. It is more problematic to establish for the individual provisions of the standard terms. The view that unknown terms cannot be interpreted according to Art. 8 and thus they never can become part of the contract seems to be too simplistic.[117] As contracts are creatures of will, nothing prevents a party from voluntarily consenting to terms that the party does not know in detail. This is comparable to the situation in which a document that has not been read or understood is signed: the party is normally bound to its terms.[118]

The decisive point in time for the decision whether the standard terms become an integral part of the contract is, rather, the time of reply of the offeree. The question is whether the offeror can interpret the signature on the offer document as the consent of the offeree to be bound by the offeror's standard terms. This cannot be established by the mere existence of the signature under the incorporation reference, as Art. 8(3) explicitly bans all formal restrictions as to interpretation.[119]

At this point, the possibility of taking notice of the content of the standard terms comes into play: according to Art. 8(2) CISG, the offeror cannot assume the acceptance of the standard terms without further indications if the offeree had not had the possibility to peruse the standard terms. No reasonable business person would accept standard terms of the counterpart blindly, or, at least, only within a very narrow frame. If the only place where the standard terms can be found is the desk drawer of the offeror, then the return of the signed offer is a counter offer which impliedly and contrary to its wording excludes the standard terms of the offeror. If the parties perform the contract, and thus the offeror accepts the counter-offer, a contract has been concluded without the standard terms of the [page 279] original offer. This result is, it is submitted, a result of interpretation,[120] and not the result of due reception of the entire offer,[121] as argued by some.

An interesting question arises if the offeror refers to standard terms which are available openly to the public. Can the offeror assume, if the offeree signs and returns the offer, that the offeree accepts the incorporation of the standard terms, as the offeree had the possibility to take notice of their content?

The incorporation of standard terms in this case is rejected by some authors, as the effort to obtain knowledge of the contents of the standard terms could hardly have been reasonably expected.[122] However, generally speaking, the possibility of imposing such a duty is recognised.[123] A general rejection of such duty would bring with it problems with commercial practice, when parties refer to rules such as INCOTERMS or Gafta 100.[124] The efficiency advantage of these rules is exactly that they are not negotiated and sent with each contract that is concluded.

The duty upon the offeree to obtain knowledge is more clearly rejected if the contract is a cross-border contract where the foreign contract partner had difficulties obtaining a copy of the standard terms.[125] The duty has also to be rejected if the reference to the standard terms is too indefinite so that it is even unclear whether it refers to standard terms at all.[126]

The incorporation of standard terms, which are not enclosed with the offer, can be assumed if such incorporation has become an established practice between the parties.[127] The same applies if the standard terms are handed over prior to the first contract conclusion and if subsequent contracts simply refer to these standard terms [128] or if the offeree knows the standard terms for some other reason.[129] Also [page 280] unproblematic is the case in which both parties refer to and therefore implicitly accept the suggested standard terms of a corresponding industry association.[130]

It can be discerned that it depends on the circumstances of each individual case whether the person introducing the standard terms was, in line with the concept of the 'reasonable person of the same kind' which is not focused only on that person's own advantage,[131] entitled to assume that its contractual partner consented to the standard terms.

In the author's opinion, factors in particular like the availability of the terms and conditions and the time span between offer and acceptance have to be taken into consideration, as these factors indicate whether the offeree has or could have obtained the necessary information.

3.4.1.2.3 An actual issue: publication on the Internet

The Internet has developed a special commercial significance and the question has arisen whether it is sufficient to bind the offeree for the person introducing its standard terms to publish the standard terms on the Internet and refer to them in the contract.

The landmark judgment of the German Supreme Court regarding standard terms under CISG held that it is sufficient if the standard terms are 'made available by other means' to the other contracting party.[132] The question, in the case of the Internet, is whether the effort to obtain knowledge there published can be expected from the other party. Some legal literature suggests that the offeree can be expected to look up the standard terms on the Internet,[133] while other commentators have expressed some reservations. Authors assert that a reference to an Internet source of standard terms shall suffice if the contract is concluded on the Internet,[134] or if a direct link to the site containing the standard terms is provided in the contract.[135] Other authors consider it necessary that the offeree has shown that he has Internet access, for example, by holding out an e-mail address for business purposes.[136] [page 281]

A different opinion generally rejects the view that the publication of standard terms in the Internet is sufficient.[137] The offeree would have to take a not insignificant initiative on his own to access the standard terms. Furthermore the offeree would need certain computer programs (for example, for PDF documents), and HTML documents could not be printed properly. Moreover, technical know-how and equipment would be needed to print the standard terms and therefore the effort to obtain a copy of the standard terms should not be expected from the offeree.[138]

This view should not be followed. A computer with Internet access (and, besides, a printer) is nowadays an indispensable tool to run a proper merchant's office and can be expected to be available to the other party.[139] The installation of programs like the Adobe Acrobat Reader for PDF documents or the capacity to learn how to print HTML files properly is so easy that those steps can be expected in today's commercial world. One should bear in mind that these hurdles, if they exist at all, do not exist for each contract conclusion but only have to be overcome once.[140] In this regard, they should not be treated differently to the purchase of other office material. Accessing standard terms on the Internet is not significantly more burdensome than turning around an offer form on which the standard terms are printed overleaf.

Besides, it should be noted that a delay of contract conclusion, which is undesirable according to the German Supreme Court,[141] can be avoided by employing the Internet.[142] The easy accessibility and independence from distances provided by the Internet permits standard terms to be accessed, perused and printed immediately, a process much faster than mail. In addition, having the standard terms as an electronic or 'soft' copy increases their transparency as, unlike with hard copies, the reader can search for key words in the full text and thereby find decisive parts quickly.

By virtue of the widespread presence and capability of the Internet to save standard terms and make them publicly available without delay, the publication of standard terms on the Internet should be regarded as sufficient if there is a reference in the contract pointing to the availability of the standard terms on the Internet. This is of no undue detriment to the other party: If the other party does [page 282] not wish the standard terms to be incorporated because the party does not have access to the Internet, it can address this in its reply. By doing so, the other party expresses its true intention within the meaning of Art. 8(1) and the person introducing its standard terms cannot rely on an incorporation according to Art. 8(2).

3.4.1.2.4 Incorporation check by means of interpretation

Some authors suggest that it would be possible to check specific terms of the standard terms on the incorporation level, even though the question of the validity of certain terms is normally excluded from the scope of the CISG by virtue of Art. 4(a).

This view is especially held for the case in which the standard terms contain hidden definitions which deviate from the general meaning of certain expressions.[143]

Even though no precise reasoning is provided for this view, it is correct. The check of validity, which is for the most part excluded from the CISG by virtue of Art. 4(a),[144] differs in a significant aspect from the incorporation check through Art. 8. If the parties explicitly agree on a term which is prohibited by national law, even if they are positively aware of its content, the term is invalid. The term's validity, or invalidity, thus results from its content without recourse to the parties' intention.

The other control on incorporation operates through Art. 8(2). If the party introducing the general terms and conditions receives signed standard terms, this party has to be aware that generally, standard terms are not perused but only quickly glanced at. Thus, a reasonable person of the same kind would, according to Art. 8(2), not assume that his business partner would also agree to such terms which are completely unusual. The general intention to be bound by the standard terms does not include surprises.[145] This is the difference to the 'real' validity check via Art. 4(a): if the person introducing the standard terms knows that his business partner is aware of the unusual clause and that he agrees to it, the interpretation according to Art. 8 leads to the incorporation of the clause: The true intention to incorporate also the unusual clause was recognisable. [page 283]

3.4.2 BATTLE OF THE FORMS

A further topic associated with standard terms, which is heavily disputed in literature and judicature, is the so-called 'battle of the forms'. If two parties, using contradicting standard form contracts, conclude a sales contract which is governed by the CISG, the question arises: what is content of the contract if the contract is being performed? Some authors suggest that this problem has always been outside the scope of the CISG [146] since the proposal from Belgium [147] to introduce a corresponding provision was rejected by the Diplomatic Conference.[148] The matter should, therefore, be regarded as not covered by the CISG.[149] Other authors suggest that the problem would result in a dissent which is properly governed by national rules.[150] This view should not be followed since the Diplomatic Conference deemed that the existing rules of the CISG would be sufficient to deal with the problem.[151]

3.4.2.1 Last shot theory

This rule can be derived from Art. 19. Article 19(1) provides that a reply to an offer, which purports to be acceptance but which includes additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer. According to Art. 19(2), the contract is still concluded if the additions or modifications do not alter the offer materially and if the offeror and addressee of the acceptance does not object without undue delay. Art. 19(3) then deems certain changes to be material.

Thus, Art. 19 prima facie provides for the last shot rule in the case of contradicting standard terms. The standard terms of the contracting party which referred to its terms and conditions last become part of the contract -- independent from the content of the first offer, the contradicting standard terms introduced later constitute a counter-offer according to Art. 19. If the addressee of the counter-offer [page 284] does not object (if the changes are not material) or accepts the counter-offer by commencing contract performance (if the changes are material),[152] the later introduced standard terms apply. This result, easily derived from the text of the CISG, is often regarded as the method of choice in the sphere of application of the CISG,[153] since this was the rule of law [154] and the result of the search for offer and mirroring acceptance.[155] Further, as the last shot rule is prima facie the legal rule of the CISG, its application serves the purpose of legal certainty.[156]

3.4.2.2 Critique of the last shot rule

The last shot rule is often regarded as outdated, since standard terms are often used without consideration of their content and also because Art. 19 was tailored for individually formulated clauses.[157] Further, it is argued that the last shot rule produces arbitrary results and renders interpretation results vulnerable to manipulation, since it may be totally arbitrary who referred to his standard terms last.[158]

The rule also creates difficulties with respect to interpretation. The last shot rule presupposes that the contracting party which made the first offer agrees to the counter-offeror's standard terms by mere performance of the contract. It is indeed [page 285] possible to assign intention to a party's conduct under the CISG, but this intention has to be analysed according to Art. 8(2). If the first offeror has just introduced his own standard terms, there remains significant doubt whether the counter-offeror, from the point of view of the reasonable person, can assume that the first offeror now accepts the opposing standard terms without discussion by mere contractual performance. Such 'consent' to the last standard terms, which is required by the last shot rule, can hardly be derived from Art. 8(2) [159] and is thus rather fiction than the result of interpretation.[160]

Indeed, by the same argument, one could assert that the first offeror would again, and this time impliedly, offer to incorporate his standard terms when he performs the contract.

3.4.2.3 Knock-out rule

Due to the above-mentioned disadvantages, a strong opinion in judicature and literature suggests applying the 'knock-out rule' if the parties commence contract performance despite their contradicting standard terms.[161] According to this theory, all identical terms in the different terms and conditions become part of the contract. All contradicting standard terms are deemed invalid and replaced by the rules of the CISG.[162]

Even though the 'knock-out rule' seems to be appropriate [163] and desirable,[164] it cannot be directly derived from Art. 19 or other provisions of the CISG.[165] Thus, some authors declare the 'knock-out rule' to be inapplicable.[166] The scholars [page 286] suggesting that the 'knock-our rule' is appropriate provide different reasons to apply it, such as practices between the parties [167] (which, of course, cannot be employed at the first business contact -- cf. Art. 9(1)),[168] good faith, [169] or an implied party agreement. According to the scope of this paper, the latter suggestion shall be discussed.

Scholars promoting the 'knock-out rule' argue that the parties, by performing the contract, express the intention that contract conclusion shall not fail due to contradicting standard terms. Thereby, the parties deviate from the rules of Art. 19 by virtue of Art. 6.[170] As this intention is normally not expressed earlier than the time at which performance commences,[171] this Rule is often only held applicable for the period after contract performance.[172] Before that, both parties have the opportunity to complain about the deviating terms.[173]

3.4.2.4 The German Supreme Court's opinion regarding the knock-out rule

A different approach was employed by the German Supreme Court.[174] After the parties had performed the contract despite contradicting standard terms, the Court held that the parties showed -- by their conduct -- that they regarded the deviations of the latter from the first standard terms as being not material according to Art. 19(2). At the same time, the Court did not answer the question whether the 'knock-out rule' or the 'last shot rule' should be preferred, but it indicated a tendency towards favouring the German approach, the 'knock-out rule'.[175] By doing this, the German Supreme Court ought to have encountered logical problems: If the argument is that the parties qualify the changes as being [page 287] non-material according to Art. 19(2), then performance without objection should have led the Court to the Last Shot Rule (cf. Art. 19(2) sentence 2). Thus, a landmark decision regarding the battle of the forms by the German Supreme Court is yet to come.

3.4.2.5 Critique of the knock-out rule

Independently from the judgment of the German Supreme Court, the 'knock-out rule' has a similar weakness as the 'last shot rule'. The interpretation of contract performance as being the mutual intention to deviate from Art. 19 and to only give effect to identical provisions in the standard terms is near to fiction. It is the very nature of standard terms that they are not perused, let alone compared. Therefore the assumption of such party agreement is artificial as merchants do not consider this problem until a dispute arises.[176] The only thing on which the parties have agreed is the existence of a contract, otherwise they would not have commenced performance. A determination that they decided in favour of the 'knock-out rule' and against the 'last shot rule' can only, if at all, be derived from a hypothetical intention, but not by real party intention. Normally, the party introducing its standard terms last would not favour the 'knock-out rule'.

This has lead Perales to the conclusion that 'other scholars unsatisfied with the result reached following the rules of the Convention, particularly CISG Art. 19, have tried to build an original, but artificial, theory to do away with the contradictions of terms.'[177]

3.4.2.6 Author's opinion

At the end, it can be observed that the only thing on which the parties agree is that they do not agree. The question of colliding standard terms cannot be resolved by attempts of interpretation according to Art. 8 only. Contrary to the 'knock-out rule', the application of Art. 19 should be considered. Article 19 is a disposable rule [178] which applies if the parties have not deviated from the rule by agreement.[179]

As the performance of the contract cannot be interpreted as a deviation from Art. 19, as is asserted, Art. 19 is the rule that applies. This is further reinforced by the fact that the problem was discussed by the Conference, which then held that the introduction of a specific rule dealing with contradicting standard terms was [page 288] not necessary.[180] However, the application of Art. 19 does not result in the Last Shot Rule. When the offeree 'accepts' the offer and, at the same time, refers to his own standard terms, he introduces a counter-offer according to Art. 19(2).

If the parties presume a valid contract has been concluded and commence performance, advocates of the 'last shot rule' deem this performance to constitute acceptance of the counter-offer.[181] As has been shown above, this view should not be followed,[182] as the party introducing his standard terms last cannot assume a sudden change of the other party's mind by reason only of the fact that he introduced contradicting standard terms.

The only ascertainable fact on which the parties agree will be that a contract has been concluded and that the core questions have been agreed on. No consent will be ascertainable for either of the standard terms. Thus, a partial (and often unrecognised [183]) dissent regarding the standard terms exists, which the parties obviously want to be treated as unimportant.

Resulting from the above, none of the standard terms have become part of the contract. The identical parts therein have, however, to be deemed valid by virtue of both parties' intention. The result is the same as the 'knock-out rule'. But the way to reach it is not to evince an intention of the parties to deviate from Art. 19 with the intention to apply the 'knock-out rule', but rather the mere absence of any intention regarding the issue.

Exceptions naturally apply if the parties really agreed on the 'knock-out rule' or if a corresponding trade usage can be ascertained.[184]

4. CONCLUSION

One result can be fixed: The history of legal statements is a history full of misunderstandings.

The balanced approach of Art. 8 to give effect to the true intention of a party as long as it is within the scope of the reasonable third party has some pitfalls.

The reasonable third party in the shoes of the addressee brings along the danger that the result of interpretation can be manipulated by considering greater or fewer [page 289] circumstances. As the protection of the expectations of other market participants identifies the point at which the effect of the true intention ceases, all those circumstances which are known to all persons involved should be considered when determining the reasonable third person.

In Art. 8(3), a clarification regarding the treatment of subsequent conduct as a means of interpretation would have been desirable. If one took the provision literally, it would be illogical and give a party the opportunity to manipulate the outcome of interpretation by its own subsequent conduct. The provision has thus to be read so as to prevent a party relying on its own subsequent conduct to reinforce its claimed understanding at the time of contract conclusion.

Further, the German teachings when and if a statement reaches the addressee should not be transferred on the CISG: language difficulties should not be treated as a question of due reception. As Art. 8 decides whether legally relevant action has been performed also for non-linguistic actions, it should also be employed to decide linguistic issues.

Finally, it can be concluded that the question of incorporation of standard terms can be answered according to the rules of Art. 8 as it is presently drafted, although an explicit provision would have been desirable.[185] The special feature of standard terms is to be used without detailed consideration, which is not mirrored in the interpretation rules of party intention. This problem is more significant when resolving the problem of inconsistent and disputed standard terms: It would have helped every practitioner if an explicit rule had been incorporated as suggested by the Belgian delegates. The available rules, however, lead to the 'knock-out rule' if the contract is performed, but with a different reasoning to the one normally given. [page 290]


FOOTNOTES

d1. This thesis was submitted to the Clive M. Schmitthoff Essay Competition and awarded a Certificate of Merit. The original thesis, written in German and being a university study paper, is published on the Pace Law School CISG database, available at: <http://www.cisg.law.pace.edu/cisg/biblio/bib2.html>.

a1. Student, Law Clerk at the Institute of the Legal Profession at Humboldt University Berlin, Germany. The author wants to thank Elisabeth Opie for her support with this publication.

1. Schmidt-Kessel, M. in Schlechtriem, P. and Schwenzer, 1. (eds), Kommentar zum einheitlichen UN-Kaufrecht, (4th ed, 2004, C. H. Beck), Art. 8 para. 9 (English translation by the author).

2. Henceforth all Articles are Articles of the CISG, unless indicated otherwise.

3. 'Verkehrsschutz': Schmidt-Kessel, supra fn 1, Art. 8 para. 9; Honnold, J., Uniform Law for International Sales under the 1980 United Nations Convention, 2nd ed, 1991, Kluwer, Deventer, at para. 106; Junge, W. in Schlechtriem, P. (ed), Kommentar zum einheitlichen UN-Kaufrecht, (3rd ed, 2000, C. H. Beck), Art. 9 para. 1 ff.

4. Shuttle Packaging Systems, L.L.C. v. Jacob Tsonakis, INA S.A., et al. (USA), 17 December 2001, available at <http://www.unilex.info> (henceforth 'UNILEX'); Treibacher Industrie AG v. TDY Industries, Inc. (USA), 27 April 2005, available at: <http://www.cisg-online.ch> no. 1178 (henceforth cisg-online no.).

5. Canaris, C.-W. and Grigoleit, H. C., 'Interpretation of Contracts' in Hartkamp, A. et al. (eds), Towards a European Civil Code, (3rd ed, 2004, Kluwer), 447.

6. Junge, supra fn 3, Art. 8 para. 5.

7. Farnsworth, E. A. in Bianca, C. M. and Bonell, M. J. (eds), Commentary on the International Sales Law, (1987, Giuffrè), Art. 8 para. 2.3; Enderlein, F., Maskow, D. and Strohbach, H., Internationales Kaufrecht, 1991, Haufe, Berlin, at Art. 8 para. 3.1.

8. Lüderitz, A. and Fenge, A., in Soergel, Hs. Th. (founder) and Siebert, W. (ed), Bürgerliches Gesetzbuch mit Nebengesetzen, Vol. 13: Schuldrechtliche Nebengesetze 2, CISG, (13th ed, 2000, W. Kohlhammer), Art. 8 para. 4.

9. Bydlinsky, F., 'Das allgemeine Vertragsrecht' in Doralt, P. (ed), Das UNCITRAL-Kaufrecht im Vergleich zum österreichischen Recht, Referate und Diskussionen, (1985, Manzsche), 85; Schlechtriem, P., Einheitliches UN-Kaufrecht, 1981, JCB Mohr (Paul Siebeck), Tübingen, at p. 26.

10. LG Hamburg 5 O 543/88 (Germany), 26 September 1990, cisg-online 21; Junge, supra fn 3, Art. 8 para. 7; Ferrari, F., 'Auslegung von Parteierklärungen und-verhalten nach UN-Kaufrecht' (2003) Internationales Handelsrecht (IHR) 13; Lüderitz and Fenge, supra fn 8, Art. 8 para. 5; Saenger, I. in Bamberger, H. G. and Roth, H. (eds), Kommentar zum Bürgerlichen Gesetzbuch, Vol. 3 CISG, (2003, C. H. Beck,), Art. 8 para. 3; Schlechtriem, P., Internationales UN-Kaufrecht, 2nd ed, 2003, Mohr Siebeck, Tübingen, at para. 54; Magnus, U. in Staudinger, J. (founder), J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch, Volume: CISG, (2005, Sellier -- de Gruyter), Art. 8 para. 17; Witz, W. in Witz, W., Salger, H.-C. and Lorenz, M., International Einheitliches Kaufrecht, (2000, Recht und Wirtschaft), Art. 8 para. 7.

11. MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S.P.A. (USA), 29 June 1998, cisg-online 432; 'The rule': Witz, supra fn 10, Art. 8 para. 5.

12. Magnus, supra fn 10, Art. 8 para. 23; Schmidt-Kessel, supra fn 1, Art. 8 para. 13.

13. Dominant opinion: CISG Advisory Council Opinion No. 3, available at: <http://www.cisg.law.pace.edu/cisg/CISG-AC-op3.html>; Filanto S.p.A. v. Chilewich International Corp. (USA), 14 April 1992, cisg-online 45; Calzaturificio Claudia s.n.c. v. Olivieri Footwear Ltd. (USA), 6 April 1998, cisg-online 440; MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S.p.A. (USA), 20 June 1998, cisg-online 432; Mitchell Aircraft Spares, Inc. v. European Aircraft Service AB (USA), 28 October 1998, cisg-online 444; Shuttle Packaging Systems, L.L.C. v. Jacob Tsonakis, INA S.A., et al. (USA), 17 December 2001, UNILEX; Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., Inc., d/b/a Maurice Lenell Cooky Company (USA), 28 August 2001, cisg-online 599; Honnold, J., supra fn 3, at para. 110; Lüderitz, A. and Fenge, A. in Soergel, Hs. Th. (founder) and Siebert, W. (ed), CISG, Art. 8 para. 8; Calleo, P. J., "The inapplicability of the Parol Evidence Rule to the United Nations Convention on Contracts for the International Sale of Goods" (2000) 28 Hofstra Law Review 821; Deviating opinions: Beijing Metals & Minerals Import/Export Corporation v. American Business Center, Inc. (USA), 15 June 1993, cisg-online 89; Moore, D. H., 'The Parole Evidence Rule and the United Nations Convention on Contracts for the International Sale of Goods: Justifying Beijing Metals & Minerals Import/Export Corp. v. American Business Center, Inc.' (1995) Brigham Young University Law Review 1351.

14. Schmidt-Kessel, supra fn 1, Art. 8 para. 50.

15. Witz, 'The rule', supra fn 10, Art. 8 para. 5.

16. Schmidt-Kessel, supra fn 14, Art. 8 para. 9.

17. Then Art. 8(1) is applicable.

18. Ferrari, supra fn 10, Art. 8 para. 17.

19. Junge, supra fn 3, Art. 8 para. 7 (translated by author).

20. Schnyder, A. K. and Straub, R. M. in Honsell, H. (ed), Kommentar zum UN-Kaufrecht, 1997, Springer, Art. 8 para. 9; Magnus, supra fn 10, Art. 8 para. 17; Junge, supra fn 3, Art. 8 para. 7.

21. Reinhart, G., UN-Kaufrecht, 1990, C. F. Müller, at Art. 8 para. 3.

22. Lüderitz, A. and Fenge, A. in Soergel, Hs. Th. (founder) and Siebert, W. (ed), CISG, Art. 8 para. 7; Honnold, supra fn 3, at para. 107.1; Herber, R. and Czerwenka, B., Internationales Kaufrecht, 1991, C. H. Beck, Munich, at Art. 8 para. 6.

23. Witz, supra fn 10, Art. 8 para. 7.

24. Enderlein, Maskow and Strohbach, Internationales Kaufrecht, supra fn 7, Art. 8 para. 5.

25. Ibid.

26. Farnsworth, supra fn 7, Art. 8 para. 2.4.

27. Cf. United Nations, United Nations Conference on Contracts for the International Sale of Goods, Official Records, 1981, United Nations Publications, at p. 423 no. 47 ff.

28. The Drafting Conference was installed by General Assembly Resolution Nr. 33/93 in order to draft the CISG: United Nations, Official Records, at p. xiii.

29. See Witz, supra fn 10, Art. 8 para. 7.

30. Swabia is a region in south-western Germany, surrounding Stuttgart.

31. 'Standard German' is the 'dialect-free' version of German, spoken inter alia, on TV, in politics and nation-wide business, see <http://en.wikipedia.org/wiki/Standard_German>.

32. Schmidt-Kessel, supra fn 1, Art. 8 para. 9; Junge, supra fn 3, Art. 8 para. 1 et seq.; Honnold, supra fn 3, at para. 106.

33. Enderlein, Maskow and Strohbach, supra fn 7, Art. 8 para. 5.

34. Witz, supra fn 10, Art. 8 para. 8.

35. Schmidt-Kessel, supra fn 1, Art. 8 para. 50.

36. Schlechtriem, supra fn 10, at para. 57; Karollus, M., UN-Kaufrecht, 1991, Springer, Vienna, New York, at p. 94.

37. Schmidt-Kessel, supra fn 1, Art. 8 para. 50; Witz, supra fn 10, Art. 8 para. 13.

38. Farnsworth, supra fn 7, Art. 8 para. 2.2.

39. Filanto S.p.A. v Chilewich International Corp. (USA), 14 April 1992, cisg-online 45.

40. OGH 2 Ob 547/93 (Austria), 10 November 1994, cisg-online 117.

41. OLG Stuttgart 5 U 118/99 (Germany), 28 February 2000, cisg-online 583.

42. OLG Koblenz 2 U 31/96 (Germany), 31 January 1997, cisg-online 256.

43. BG St. Gallen 3PZ 97/18 (Switzerland), 3 July 1997, cisg-online 336.

44. OLG Karlsruhe 15 U 29/92 (Germany), 20 November 1992, cisg-online 54.

45. Schmidt-Kessel, supra fn 1, Art. 8 para. 59; Junge, supra fn 3, Art. 8 para. 6; Enderlein, Maskow and Strohbach, supra fn 7, at Art. 8 para. 11; Najork, E. N., Treu und Glauben im CISG, 2000, Diss. Bonn, at p. 47; more reluctantly, Magnus, supra fn 10, Art. 8 para. 26.

46. Cong ty Ng Nam Bee v Cong ty Thuong mai Tay Ninh (Vietnam), 5 April 1996, UNILEX; Château de Charmes Wines Ltd. v Sabate USA Inc., Sabate S.A. (USA), 5 May 2003, cisg-online 767; Schmidt-Kessel, supra fn 1, Art. 8 para. 50; Magnus, supra fn 10, Art. 8 para. 25.

47. United Nations, Yearbook Vol. VIII (1977), 1978, United Nations Publications, at p. 87 no. 167.

48. Honnold, supra fn 3, at para. 106.

49. See also Magnus, supra fn 10, Art. 8 para. 25.

50. OGer Zug OG 2004/29 (Switzerland), 5 July 2005, cisg-online 1155; Junge, supra fn 3, Art. 8 para. 6.

51. Ferrari, supra fn 10, at p. 14; Karollus, supra fn 36, at p. 94.

52. OLG Stuttgart 5 U 118/99 (Germany), 28 February 2000, cisg-online 583.

53. Magnus, supra fn 10, Art. 8 para. 25.

54. Herber and Czerwenka, supra fn 22, at Art. 8 para. 11.

55. Spellenberg, U., 'Fremdsprache und Rechtsgeschäft' in Heldrich, A. and Sonnenberger, H. J. (eds), Festschrift für Murad Ferid zum 80. Geburtstag am 11. April 1988, (1988, Verlag für Standesamtswesen), 465 (translated by author).

56. A very minor opinion regards the usage of a foreign language even as a question of form: Reinhart, G., UN-Kaufrecht, Art. 11 para. 6; regarding the 1964 The Hague Uniform Sales Law: Reinhart, G. in Dölle, H. (ed), Kommentar zum Einheitlichen Kaufrecht, (1976, C. H. Beck), Art. 15 EKG para. 38 et seqq.; regarding German law: Flume, W., Allgemeiner Teil des Bürgerlichen Rechts, Vol. 2: Das Rechtsgeschäft, 4th ed, 1992, Springer, Berlin, at p. 249 et seq.

57. OLG Hamm 11 U 206/93 (Germany), 8 February 1995, cisg-online 141; Schnyder, supra fn 20, Art. 24 para. 30; Schlechtriem, P. in Schlechtriem and Schwenzer, supra fn 1, Art. 24 para. 16; Lüderitz, A. and Fenge, A. in Soergel, Hs. Th. (founder) and Siebert, W. (ed), CISG, Art. 24 para. 6; Witz, supra fn 10, Art. 24 para. 15; Spellenberg, U., Fremdsprache und Rechtsgeschäft', in Heldrich, A. and Sonnenberger, H. J. (eds), Festschrift für Murad Ferid zum 80. Geburtstag am 11. April 1988, 475.

58. Schlechtriem, supra fn 10, at para. 95; Saenger, 1. in Bamberger, H. G. and Roth, H. (eds), CISG, Art. 24 para. 4.

59. Heinrichs, H. in Palandt, O. (founder), Bürgerliches Gesetzbuch, (62nd ed, 2003, C. H. Beck), 130 BGB para. 5 with further references.

60. 'Cannot be transferred directly', see Schlechtriem, P. in Schlechtriem and Schwenzer, supra fn 1, Art. 24 para. 16.

61. Ludwig, K. S., Der Vertragsschluss nach UN-Kaufrecht im Spannungsverhältnis von Common Law und Civil Law, 1994, Peter Lang, Frankfurt am Main, at p. 303; Ladas, D., Die Wirksamkeit der Willenserklärungen gegenüber Sprachunkundigen, 1993, Diss. FU Berlin, at p. 95; Regarding German law: LAG Köln 8 Ta 46/88 (Germany), 24 March 1988, (1988) Neue Juristische Wochenschrift (NJW) 1870 et seq.

62. Cf. Honnold, supra fn 3, Art. 24; Farnsworth, supra fn 7, Art. 24.

63. Ferrari, F. in Schlechtriem and Schwenzer, supra fn 1, Art. 7 para. 9.

64. MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S.p.A. (USA), 29 June 1998, cisg-online 432; Enderlein, Maskow and Strohbach, supra fn 7, Art. 8 para. 3.2; Witz, supra fn 10, Art. 8 para. 9.

65. See also Ladas, supra fn 61, at p. 95.

66. Witz, supra fn 10, Art. 8 para. 10.

67. Ferrari, supra fn 10, at pp. 13 ff.

68. Schlechtriem, P. in Schlechtriem and Schwenzer, supra fn 1, Art. 24 para. 16; Witz, supra fn 10, Art. 24 para. 15.

69. See Ladas, supra fn 61, at p. 108.

70. Westermann, H. P. in Rebmann, K., Säcker, F. J. and Rixecker, R. (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch, Vol. 3 CISG, (4th ed, 2004, C. H. Beck), Art. 8 para. 1; Karollus, supra fn 36, at p. 46.

71. Farnsworth, supra fn 7, Art. 8 para. 2.4.

72. Cf. supra at p. 262 ff.

73. Ferrari, supra fn 10, at p. 13.

74. Cf. Ferrari, supra fn 10.; Schnyder and Straub, supra fn 20, Art. 8 para. 7; Witz, supra fn 10, Art. 24 para. 15.

75. Cf. Ferrari, supra fn 10; Ladas, supra fn 61, at p. 121; Enderlein, Maskow and Strohbach, supra fn 7, at Art. 8 para. 3.2; Witz, supra fn 10, Art. 8 para. 9; Schlechtriem, P., 'Das 'Sprachrisiko' -- ein neues Problem?' in Ehmann, H., Hefermehl, W. and Laufs, A. (eds), Privatautonomie, Eigentum und Verantwortung, Festgabe für Hermann Weitnauer zum 70. Geburtstag, (1980, Duncker & Humblot), 138; treated as a question of interpretation in German law: ArbG Heilbronn/Neckar Ca 308/68 (Germany), 26 November 1968, (1969) Betriebsberater 535.

76. Schlechtriem, P. in Schlechtriem, P. (ed), Kommentar zum UN-Kaufrecht, Art. 24 para. 16; Lüderitz, A. and Fenge, A. in Soergel, Hs. Th. (founder) and Siebert, W. (ed), CISG, Art. 24 para. 6; Teklote, S., Die Einheitlichen Kaufgesetze und das deutsche AGB-Gesetz, 1994, Nomos, Baden-Baden, at p. 109; for a similar result ('Duty to inquire') see Westermann, supra fn 70, Art. 8 para. 3.

77. Schlechtriem, P. in Schlechtriem and Schwenzer, supra fn 1, Art. 24 para. 16; Witz, supra fn 10, Art. 24 para. 15.

78. Kühl, S. and Hingst, K.-M., 'Das UN-Kaufrecht und das Recht der AGB' in Thume, K.-H. (ed), Transport- und Vertriebsrecht 2000: Festgabe für Rolf Herber, (1999, Luchterhand), 53.

79. Towards a Hong Kong business partner: OGH 7 Ob 175/05v (Austria), 31/8/2005, UNILEX.

80. OLG Hamm 11 U 206/93 (Germany), 8 February 1995, cisg-online 141; Gruber, U. P. in Rebmann, Säcker. and Rixecker (eds), supra fn 70, Art. 24 para. 19.

81. OLG Hamm 11 U 206/93 (Germany), 8 February 1995, cisg-online 141; Ferrari, supra fn 10.

82. Cf. supra at p. 262 et seq.

83. See, generally, Enderlein, Maskow and Strohbach, supra fn 7, at Art. 8 para. 2.3; Herber and Czerwenka, supra fn 22, at Art. 8 para. 8.

84. Cf. supra at p. 262 et seq.

85. Since the doctrine of the reasonable third person includes aids: see Spellenberg, U., 'Fremdsprache und Rechtsgeschäft', in Heldrich, A. and Sonnenberger, H. J. (eds), Festschrift für Murad Ferid zum 80. Geburistag am 11. April 1988, 469.

86. Drobning, U., 'Allgemeine Geschäftsbedingungen im internationalen Handelsverkehr' in Flume, W. et al. (eds), Internationales Recht und Wirtschaftsordnung, Festschrift für F. A. Mann zum 70. Geburtstag am 11. August 1977, (1977, C. H. Beck), 595.

87. Lüderitz, A. and Fenge, A. in Soergel, Hs. Th. (founder) and Siebert, W. (ed), CISG, Art. 8 para. 10.

88. Schmidt-Kessel, supra fn 1, Art. 8 para. 41.

89. Junge, supra fn 3, Art. 8 para. 4a.

90. This is argued by Lüderitz, A. and Fenge, A. in Soergel, Hs. Th. (founder) and Siebert, W. (ed), CISG, Art. 8 para. 5; Witz, supra fn 10, Art. 24 para. 15; Kallio, A. and Tossavainen, K., 'Practical Approach to the Convention for the International Sale of Goods (CISG) Concerning the Interpretation of Statements and Conduct of the Parties' (2001) Defensor Legis 147.

91. Schmidt-Kessel, supra fn 1, Art. 8 para. 52; Ferrari, F. in Schlechtriem and Schwenzer, supra fn 1, Art. 4 para. 20; OLG Zweibrücken 8 U 46/97 (Germany), 31 March 1998, cisg-online 481.

92. LG Neubrandenburg 10 O 74/04 (Germany), 3 August 2005, cisg-online 1190; 'Exhaustively': OGH 10 Ob 518/95, 6 February 1996, cisg-online 224; Van Alstine, M. P., Fehlender Konsens beim Vertragsabschluß nach dem einheitlichen UN-Kaufrecht, 1995, Nomos, Baden-Baden, at p. 193; Schmidt-Kessel, supra fn 1, Art. 8 para. 52 with further references.

93. Schlechtriem, supra fn 10, at para. 58.

94. Rb Arnhem 107309 /HA ZA 03-2099 (Netherlands), 17 March 2004, cisg-online 946; OLG Celle 3 U 246/97 (Germany), 2 September 1998, cisg-online 506; LG Duisburg 45 (19) O 80/94 (Germany), 17 April 1996, cisg-online 186.

95. Sieg, O., 'Allgemeine Geschäftsbedingungen im grenzüberschreitenden Geschäftsverkehr' (1997) Recht der internationalen Wirtschaft (RIW) 814.

96. Cf. United Nations, Official Records, at p. 288 no. 91.

97. See, for example, Schlechtriem, P. in Schlechtriem and Schwenzer, supra fn 1, Art. 14 para. 16 (fn. 100); Schnyder and Straub, supra fn 20, Art. 14 para. 56.

98. Piltz, B., Internationales Kaufrecht (Wiener Übereinkommen von 1980) in praxisorientierter Darstellung, 1993, C. H. Beck, Munich, at 3 para. 75.

99. Gruber, in Rebmann, Säcker. and Rixecker (eds), supra fn 70, Art. 14 para. 28; Lüderitz, A. and Fenge, A. in Soergel, Hs. Th. (founder) and Siebert, W. (ed), CISG, Art. 14 para. 10.

100. Société Isea industrie SPA et al. v SA Lu et al. (France), 13 December 1995, cisg-online 312.

101. OLG Düsseldorf 1-23 U 70/03 (Germany), 30 January 2004, cisg-online 821; AG Nordhom 3 C 75/94 (Germany), 14 June 1994, cisg-online 259; OLG Saarbrücken 1 U 69/92 (Germany), 13 January 1994, cisg-online 83; even for a total exclusion of liability: Hooge Raad C03/290HR (Netherlands), 28 January 2005, UNILEX.

102. LG Göttingen 3 O 198/96 (Germany), 31 July 1997, cisg-online 564; MCC-Marble Ceramic Center, Inc. v Ceramica Nuova D'Agostino S.p.A. (USA), 20 June 1998, cisg-online 432.

103. Rudolph, H., Kaufrecht der Export- und Importverträge; Kommentierung des UN-Übereinkommens über internationale Warenkaufverträge mit Hinweisen für die Vertragspraxis, 1996, Haufe, Freiburg, at Art. 14 para. 7.

104. LG Neubrandenburg 10 O 74/04 (Germany), 3 August 2005, cisg-online 1190.

105. Inta. S.A. v. MCS Officina Meccania S.p.A. (Argentina), 14 October 1993, cisg-online 87.

106. Cf. supra at p. 268 ff.

107. BGH VIII ZR 60/01 (Germany), 31 October 2001, cisg-online 617; OLG Düsseldorf 6 U 86/00 (Germany) (2001) Neue Juristische Wochenschrift -- Rechtsprechungsreport 1562; LG Neubrandenburg 10 O 74/04 (Germany), 3 August 2005, cisg-online 1190; AG Kehl 3 C 925/93 (Germany), 6 October 1995, cisg-online 162; Hof's-Hertogenbosch (Netherlands), 16 October 2002, cisg-online 816; Magnus, U., 'Das UN-Kaufrecht: Aktuelle Entwicklungen und Rechstprechungspraxis' (2002) Zeitschrift für europäisches Privatrecht (ZEuP) 523, 532; Holthausen, R., 'Vertraglicher Ausschluß des UN-Übereinkommens über internationale Warenkaufverträge' (1989) RIW 517; Piltz, B., 'Neue Entwicklungen im UN-Kaufrecht' (1996) NJW 2768, 2770 et seq.; Piltz, B., UN Kaufrecht, Gestaltung von Export-und Importverträgen, Wegweiser für die Praxis, 3rd ed, 2001, Economica Verlag, Bonn, at para. 151 et seq.; Piltz, B., Internationales Kaufrecht, 3 para. 77 et seq.; Ventsch, V. and Kluth, P., 'Die Einbeziehung von Allgemeinen Geschäftsbedingungen im Rahmen des UN-Kaufrechts' (2003) Internationales Handelsrecht (IHR) 61, 62; Gruber, U. P. Rebmann, Säcker. and Rixecker (eds), supra fn 70, Art. 14 para. 6; Van Alstine, M. P., Fehlender Konsens, at p. 194; Ludwig, K. S., Vertragsschluss, at p. 337.

108. Lüderitz, A. and Fenge, A. in Soergel, Hs. Th. (founder) and Siebert, W. (ed), CISG, Art. 8 para. 10.

109. S.A. Gantry v. Research Consulting Marketing (Belgium), 19 September 1995, cisg-online 366.

110. BGH VIII ZR 60/01 (Germany), 31 October 2001, cisg-online 617.

111. Schmidt-Kessel, supra fn 1, Art. 8 para. 53.

112. Therefore the term 'duty to send' is an inappropriate label for the requirements set out by the German Supreme Court.

113. S.A. Gantry v Research Consulting Marketing (Belgium), 19 September 1995, cisg-online 366.

114. In this case the publicly available 'Terms of the Swiss Association of Machinery Manufacturers'.

115. Schmidt-Kessel, supra fn 1, Art. 8 para. 53; OGH 10 Ob 518/95 (Austria), 6 February 1996, cisg-online 224; LG Heilbronn 3 KfH O 653/93 (Germany), 15 September 1997, cisg-online 562.

116. BGH VIII ZR 60/01 (Germany), 31 October 2001, cisg-online 617; critiqued in Pötter, S. and Hübner, O., 'Anmerkung zu BGH Urt. v 31.10.2001 -- VIII ZR 60/01' (2002) Entscheidungen zum Wirtschaftsrecht 339, 340.

117. Teklote, S., Kaufgesetze und AGB-Gesetz, at p. 113.

118. MCC-Marble Ceramic Center, Inc. v Ceramica Nuova D'Agostino S.P.A. (USA), 29 June 1998, cisg-online 432; Ladas, supra fn 61, at pp. 98, 121.

119. Magnus, supra fn 10, Art. 8 para. 23.

120. Kühl, S. and Hingst, K.-M., 'UN-Kaufrecht und AGB' in Thume, K.-H. (ed), Transport-und Vertriebsrecht 2000: Festgabe für Rolf Herber, 52 ff.

121. Argued by Schnyder and Straub, supra fn 20, Art. 14 para. 56.

122. Witz, supra fn 10, Art. 14-24 para. 12.

123. Magnus, supra fn 10, Art. 14 para. 4; for the alternative view see Van Alstine, M. P., Fehlender Konsens, at p. 193, who always requires reception of the standard terms.

124. Schmidt-Kessel, M., 'Einbeziehung von Allgemeinen Geschäftsbedingungen unter UN-Kaufrecht' (2002) NJW 3444, 3446. Cf. <http://www.gafta.com/files/contracts/ListOfContracts.pdf>.

125. Gruber, U. P. Rebmann, Säcker. and Rixecker (eds), supra fn 70, Art. 14 para. 29; Ventsch, V. and Kluth, P., 'Einbeziehung von Allgemeinen Geschäftsbedingungen' (2003) IHR 61, 62.

126. 'Usual conditions': OGH 10 Ob 518/95 (Austria), 6 February 1996, cisg-online 224.

127. Magnus, U., 'Das UN-Kaufrecht: Fragen und Probleme seiner praktischen Bewährung' (1997) ZEuP 823, 837.

128. OLG Linz 3 R 57/05f (Austria), 8 August 2005, cisg-online 1087.

129. BGH VIII ZR 60/01 (Germany), 31 October 2001, cisg-online 617; Huber, P. and Kröll, S., 'Deutsche Rechtsprechung zum UN-Kaufrecht in den Jahren 2001/2002' (2003) Praxis des Internationalen Privat- und Verfahrensrechts 309, 311; Gruber, in Rebmann, Säcker. and Rixecker (eds), supra fn 70, Art. 14 para. 31; Holthausen, R., Vertraglicher Ausschluß' (1989) RIW 517.

130. OLG München 7 U 4427/97 (Germany), 11 March 1998, cisg-online 310.

131. Spellenberg, U., 'Fremdsprache und Rechtsgeschäft' in Heldrich, A. and Sonnenberger, H. J. (eds), Festschrift für Murad Ferid zum 80. Geburtstag am 11. April 1988, 473.

132. BGH VIII ZR 60/01 (Germany), 31 October 2001, cisg-online 617 (translated by author).

133. Stiegele, A. and Halter, R., 'Nochmals: Einbeziehung von Allgemeinen Geschäftsbedingungen im Rahmen des UN-Kaufrechts -- Zugänglichmachung im Internet' (2003) IHR 169.

134. Ibid.

135. Magnus, U., 'Aktuelle Entwicklungen und Rechstprechungspraxis' (2002) ZEuP 523, 532.

136. Gruber, in Rebmann, Säcker. and Rixecker (eds), supra fn 70, Art. 14 para. 30.

137. Ventsch, V. and Kluth, P., 'UN-Kaufrecht: Keine Einbeziehung von AGB durch Abrufmöglichkeit im Internet' (2003) IHR 224.

138. Ibid, at p. 225.

139. Stiegele, A. and Halter, R., 'Einbeziehung von Allgemeinen Geschäftsbedingungen' (2003) IHR 169.

140. Not considered so by Ventsch, V. and Kluth, P., 'Keine Einbeziehung von AGB' (2003) IHR 224.

141. BGH VIII ZR 60/01 (Germany), 31 October 2001, cisg-online 617.

142. Stiegele and Halter, supra fn 140.

143. Junge, supra fn 3, Art. 8 para. 8a; Kühl, S. and Hingst, K.-M., 'UN-Kaufrecht und AGB', in Thume, K.-H. (ed), Transport- und Vertriebsrecht 2000: Festgabe für Rolf Herber, 52.

144. Schmidt-Kessel, supra fn 1, Art. 8 para. 52; Ferrari, supra fn 63, Art. 4 para. 20; OLG Zweibrücken 8 U 46/97 (Germany), 31 March 1998, cisg-online 481.

145. For example, 'Further, 1 sell my house to the offeror'. See Schmidt-Kessel, supra fn 1, Art. 8 para. 57.

146. Schlechtriem, P., 'Einheitliches UN-Kaufrecht; Das Übereinkommen der Vereinten Nationen vom 11. April 1980 über Verträge über den international Warenkauf (CISG)' (1988) Juristenzeitung (JZ) 1037, 1042; Hellner, J., 'The Vienna Convention and Standard Form Contracts' in S arc evi , P. and Volken, Paul (eds), International Sale of Goods, Dubrovnik Lectures, (1986, Oceana Publications), 342; expressly against the application of national law: Kramer, E., "'Battle of the Forms"; Eine rechtsvergleichende Skizze mit Blick auf das schweizerische Recht' in Tercier, P. et al. (eds), Gauchs Welt, Recht, Vertragsrecht und Baurecht, Festschrift für Peter Gauch zum 65. Geburtstag, (2004, Schulthess, Zurich), 501, fn 42.

147. United Nations, Official Records, at p. 96.

148. United Nations, Official Records, at p. 289.

149. Schlechtriem, P., 'Einheitliches UN-Kaufrecht' (1988) JZ 1037, 1042.

150. Kramer, E., discussion statement in Doralt, P. (ed), Das UNCITRAL-Kaufrecht im Vergleich zum österreichischen Recht, Referate und Diskussionen, (1985, Manzsche), 95.

151. United Nations, Official Records, at p. 288 no. 92.

152. Then, the terms and conditions as a whole are regarded as a material modification: Gruber, in Rebmann, Säcker. and Rixecker (eds), supra fn 70, Art. 19 para. 26; Neumayer, K. H., 'Das Wiener Kaufrechtsübereinkommen und die sogenannte "battle of the forms"' in Habscheid, W. J. et al. (eds), Freiheit und Zwang, Rechtliche, wirtschaftliche und gesellschaftliche Aspekte, Festschrift zum 60. Geburtstag von Professor Dr. iur. Dr. phil. Hans Giger, (1989, Stämpfli & Cie), 521.

153. OLG München 7 U 4427/97 (Germany), 11 March 1998, cisg-online 310; Junge, supra fn 3, Art. 8 para. 11; Schnyder and Straub, supra fn 20, Art. 19 para. 37; Enderlein, Maskow and Strohbach, supra fn 7, at Art. 19 para. 10; Karollus, supra fn 36, at p. 71; Reinhart, G., UN-Kaufrecht, at Art. 19 para. 8; Herber and Czerwenka, supra fn 22, at vor Art. 14 para. 15; Schlechtriem, P. in Schlechtriem and Schwenzer, supra fn 1, Art. 19 para. 18; see also BGH VIII ZR 304/00 (Germany).

154. Ludwig, K. S., Vertragsschluß, at p. 340; Kelso, J. C., 'The United Nations Convention on Contracts for the International Sale of Goods: Contract Formation and the Battle of the Forms' in (1983) 21 Columbia Journal of Transnational Law 529, 551 et seq.; Kröll, S. and Hennecke, R., 'Kollidierende Allgemeine Geschäftsbedingungen in international Kaufverträgen' (2001) RIW 736, 739; Koch, R., 'Wider den formularmäßigen Ausschluss des UN-Kaufrechts' (2000) NJW 910, 911.

155. Blodgett, P. C., 'The U. N. Convention on the Sale of Goods and the "Battle of the Forms"' (1989) 18 Colorado Lawyer 421, 427.

156. Neumayer, K. H., 'Das Wiener Kaufrechtsübereinkommen' in Habscheid, W. J. et al. (eds), Freiheit und Zwang, Rechtliche, wirtschaftliche und gesellschaftliche Aspekte, Festschrift zum 60. Geburtstag von Professor Dr. iur. Dr. phil. Hans Giger, 524; Junge, supra fn 3, Art. 8 para. 11.

157. Witz, W supra fn 10, Art. 19 para. 16.

158. Magnus, supra fn 10, Art. 19 para. 24.

159. Van Alstine, M. P., Fehlender Konsens, at p. 225.

160. See also Kröll, S. and Hennecke, R., 'Kollidierende Allgemeine Geschäftsbedingungen' (2001) RIW 736, 739; Van Alstine, M. P., Fehlender Konsens, at p. 225.

161. Mode Jeune Diffusion SA v. Maglificio il Falco di Tiziana Goti et Fabio Goti SNC (France), 2 December 1997, UNILEX; Société Les Verreries de Saint Gobain v. Société Martinswerk GmbH (France), 16 July 1998, cisg-online 344; LG Trier 7 O 78/95 (Germany), 12 October 1995, (1996) Wirtschaftsrechtliche Beratung 398; Holthausen, R., 'Vertraglicher Ausschluss' (1989) RIW 517, 518; Gruber, Rebmann, Säcker. and Rixecker (eds), supra fn 70, Art. 19 para. 24; Piltz, B., Internationales Kaufrecht, at 3 para. 95 ff.; Herber and Czerwenka, supra fn 22, at Art. 19 para. 18; Magnus, supra fn 10, Art. 10 para. 25; Van Alstine, M. P., Fehlender Konsens, at p. 213; Kühl, S. and Hingst, K.-M., 'UN-Kaufrecht und AGB', in Thume, K.-H. (ed), Transport-und Vertriebsrecht 2000: Festgabe für Rolf Herber, 57.

162. Gruber, in Rebmann, Säcker. and Rixecker (eds), supra fn 70, Art. 19 para. 22.

163. Gruber, ibid, Art. 19 para. 24.

164. Magnus, supra fn 10, Art. 19 para. 22.

165. Müller, H. and Otto, H.-H., Allgemeine Geschäftsbedingungen im internationalen Wirtschaftsverkehr, 1994, Luchterhand, Neuwied, at p. 40.

166. Herber and Czerwenka, supra fn 22, at Art. 19 para. 18; 'can generally not be assumed', see Schnyder and Straub, supra fn 20, Art. 19 para. 37 (translated by author).

167. Van Alstine, M. P., Fehlender Konsens, at p. 212; Holthausen, R., 'Vertraglicher Ausschluss' (1989) RIW 517, 518.

168. For a further critical view see Kröll, S. and Hennecke, R., 'Kollidierende Allgemeine Geschäftsbedingungen' (2001) RIW 736, at p. 741.

169. Van der Velden, F. J. A., 'Uniform International Sales Law and the Battle of the Forms' in Unification and comparative law in theory and practice, Contributions in honour of Jean Georges Sauveplanne, 1984, Deventer, Boston, 248.

170. OGH 2 Ob 58/07m (Austria), 20 March 1997, cisg-online 269; AG Kehl 3 C 925/93 (Germany), 6 October 1995, cisg-online 162; Kröll, S. and Hennecke, R., 'Kollidierende Allgemeine Geschäftsbedingungen' (2001) RIW 736, 742.

171. Therefore critical to the 'knock-out rule' prior to contract performance: Van Alstine, M. P., Fehlender Konsens, at p. 217.

172. Kühl, S. and Hingst, K.-M., 'UN-Kaufrecht und AGB' in Thume, K.-H. (ed), Transport-und Vertriebsrecht 2000: Festgabe für Rolf Herber, 54 et seq.; Witz, supra fn 10, Art. 9 para. 15 et seq.; Gruber, Rebmann, Säcker. and Rixecker (eds), supra fn 70, Art. 19 para. 26 ff.

173. Witz, W supra fn 10, Art. 19 para. 19.

174. BGH VIII ZR 304/00 (Germany), 9 January 2002, cisg-online 651.

175. See also Gruber, Rebmann, Säcker. and Rixecker (eds), supra fn 70, Art. 19 para. 23.

176. Sieg, O., 'Allgemeine Geschäftsbedingungen' (1997) RIW 811, 814.

177. Perales Viscasillas, M., "'Battle of the Forms' under the 1980 United Nations Convention on Contracts for the International Sale of Goods: A Comparison with Section 2-207 UCC and the UNIDROIT Principles", (1998) 10 Pace International Law Review 97, available at: <http://www.cisg.law.pace.edu/cisg/biblio/pperales.html>, at VI. C.

178. Ferrari, supra fn 63, Art. 6 para. 5.

179. Ferrari, ibid, Art. 6 para. 6.

180. United Nations, Official Records, at p. 288 et seq.

181. Schnyder and Straub, supra fn 20, Art. 19 para. 37; Farnsworth, supra fn 7, Art. 19 para. 2.5.

182. Supra at p. 285.

183. Ferrante, E., "'Battle of Forms" and the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG); A note on the BGH (German Supreme Court) decision of 9 January 2002', (2003) Uniform Law Review, Revue de Droit Uniforme 975, 978.

184. Schnyder and Straub, supra fn 20, Art. 19 para. 38.

185. Cf. the abandoned draft of the Working Group: United Nations, Yearbook Vol. IX (1978), 1981, United Nations Publications, at p. 81.


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